Friday Links

Well, this is our last edition of Friday Links before the Christmas holidays, so we had to bring you the cover above, that of Batman #33 (published way, way back in 1946). Surely, Batman and Robin have been things to be doing, right? I mean, isn’t Alfred the butler employed to handle this very type of situation? Something is askew.

Over at his Torts Blog, Alberto Bernabe directs our attention to some songs about tort reform.

We’re pleased to see that Jeff Richardson at the iPhone J.D. blog fondly remembers the days of computer BBSs. For more on that, see here. Those were definitely the days.

Oscar Ramallo of The Hollywood Reporter offers this piece: “In Search Of A Lawsuit-Proof Band Name.”

Ron Nixon of The New York Times reports on the departure of Inez Tenenbaum as the head of the Consumer Product Safety Commission.  Her term expired in November. Tenenbaum, as you might recall, is a South Carolina lawyer.

Congratulations to GWB’s Curtis Ott, a partner in our Columbia, South Carolina office, who was recently sworn in as President of the South Carolina Defense Trial Attorneys Association (SCDTAA). For more information, see here.

Jennifer Johnsen, a partner in our Greenville, South Carolina office and the chairperson of our firm’s diversity committee, published an op-ed this week entitled “5 Strategies for Promoting Diversity in the Workplace.”

Abnormal Interviews of 2013

As readers of this site are aware, we here at Abnormal Use occasionally publish interviews with law professors and practitioners on products liability and litigation. In 2013, we published a total of six such interviews (including some with comic book creators or beer enthusiasts). Today, we list all of our 2013 interviews and provide links back to them:

Daniel Hartis, North Carolina  Beer Author (July 25, 2013)
Jill Wieber Lens, Law Professor (September 10, 2013)
Brook Bristow, South Carolina Beer Lawyer (September 16, 2013)
Ryan Ferrier, Creator of ‘Tiger Lawyer” (September 30, 2013)
Daniel “Rudy” Ruettiger, College Athlete (October 10, 2013)
William M. Janssen, Law Professor (December 4, 2013)

As 2013 draws to a close, we’d like to take this opportunity to thank the individuals listed above for being kind enough to grant the interviews. We think our site is all the better for it. And, if you missed any of the interviews, take a look!

Our Favorite Posts of 2013

Now is the time that we, as consumers of media, are inundated with year end best-of lists. So, just as we have done in years past, we here at Abnormal Use have collected our favorite posts of this past year – our fourth full year of existence (if you can believe it). If you’ve followed us from the very beginning, you know that we’ve posted at least every business day these past four calendar years. That’s a lot! Looking back over our posts this year, it was difficult to choose our favorites. But, dear readers, the ones we enjoyed the most are linked for you below, along with their author and publication date. Fill yourself with nostalgia, just as we have, and revisit these entries from 2013.

On The Perils of Replying To Blog Comments (Nick Farr, February 13, 2013)

Our Office Appeared in the 2001 film SHALLOW HAL (Jim Dedman, February 28, 2013)

Laches – The Saddest of All Affirmative Defenses (Jim Dedman, March 12, 2013)

The McDonald’s Hot Coffee Case: Distinguishing Between Facts and Theory (Nick Farr, March 19, 2013)

North Carolina Court Declares Harlem Shake “Over,” Enjoins YouTube From Accepting Further Videos Depicting Same (Jim Dedman, April 1, 2013)

The Perils of Expert Depositions and The Duration Thereof (Jim Dedman, May 2, 2013)

Killing Trees At Depositions – A Modest Proposal? (Jim Dedman, May 8, 2013)

Outrageous, Egregious, Preposterous: The Hoosier State Chilled Beer Law (Rob Green, May 21, 2013)

Mediation: Uncool Wiles and Stratagems (Jim Dedman, May 23, 2013)

SC Man Burns Down House Due to Witch Infestation, Found Not Guilty of Arson (Nick Farr, June 3, 2013)

No Matter What You Think of Scalia’s Opinions, This Guy Thinks They’re Musical (Frances Zacher, July 11, 2013)

Facebook Friendships In Litigation – Exploring Them In Detail (Jim Dedman, August 7, 2013)

NFL Litigation May Forever Change Football (Nick Farr, August 19, 2013)

Federal Court Denies State’s Motion To Seal Following Habeas Counsel’s “Ill-Advised” Facebook Post Citing Kris Kristofferson (Jim Dedman, September 5, 2013)

The Blue Book and Commercial Recording Citations (Jim Dedman, September 18, 2013)

FDA Considering Rule Change Affecting Suits Against Generic Drug Makers (Frances Zacher, November 13, 2013)

Titles of Nobility Act: A New Challenge To The Legal Profession? (Nick Farr, December 2, 2013)

Golfer Takes a Mulligan. Mayhem and Litigation Ensue. (Kyle White, December 16, 2013)

South Carolina Supreme Court Enacts New Pro Hac Vice Restrictions

South Carolina lawyers – and others who find themselves litigating cases in the Palmetto State – should be aware of the brand new pro hac vice rule (issued by the South Carolina Supreme Court just last week on December 9). The new rule limits pro hac vice applications and directs that more than six such applications may be too much. Here’s the full text of the order:

Pursuant to Article V, § 4, of the South Carolina Constitution, Rule 404(b) of the South Carolina Appellate Court Rules is amended to read:

(b)     Prohibitions on Admission Pro Hac Vice. An attorney may not appear pro hac vice if the attorney is regularly employed in South Carolina, or is regularly engaged in the practice of law or in substantial business or professional activities in South Carolina, unless the attorney has filed an application for admission under Rule 402, SCACR.  Notwithstanding any other provision herein, an attorney who files more than six applications for admission pro hac vice in a calendar year, including applications for purposes of Rule 404(h), is considered regularly engaged in the practice of law in South Carolina.

This amendment is effective immediately.

The full order itself can be found here.

Today – December 15 – Is The Deadline To Comply With The South Carolina Supreme Court’s AIS Registration Order

As we reported on November 5, the South Carolina Supreme Court has ordered that all bar members update their registration information with the court’s Attorney Information System (“AIS”).

The deadline to do so, as per the terms of the court’s order, is today: December 15, 2013.

If you are a South Carolina bar member, and you have not yet updated your AIS information, you’d best do so today.

For easy reference, here’s the the text of the full order:

The South Carolina Judicial Department is currently developing an e-filing system to allow the electronic filing of documents in the courts of this State.  This system will rely, in part, on the information already maintained by the Attorney Information System (AIS), and lawyers will ultimately use their AIS user name and password to access the web-based portal for e-filing.  In preparation for e-filing, it is necessary to make various security enhancements to AIS.  This includes requiring stronger passwords.

Accordingly, between the date of this order and December 15, 2013, every member of the South Carolina Bar (including those holding limited certificates to practice law), and every foreign legal consultant licensed under Rule 424 of the South Carolina Appellate Court Rules (SCACR), must log-on to AIS and:

(1)  Change their password to a stronger password meeting the requirements specified in AIS.  Once logged-on, the lawyer or consultant will immediately be prompted to update their password and will be provided with detailed information on the complexity required for that password.

(2)  Choose and answer updated security questions.  The lawyer or consultant will be automatically prompted to provide this information once a new password is entered.

(3)  Update and verify their information in AIS, including their contact information.  Lawyers and consultants are reminded that the contact information in AIS, including the required e-mail address, is the official contact information for them.  Rule 410(e), SCACR (“The mailing and e-mail address shown in the AIS shall be used for the purpose of notifying and serving the member.”).

Lawyers and foreign legal consultants who have not changed their password and security questions, and verified their AIS information, will not be allowed to pay their license fees for 2014 until they have done so.  This may result in the lawyer or consultant being suspended under Rule 419, SCACR.

To see the Supreme Court’s order itself, please see here.

Friday Links

“There’s the jewel thief — He’s escaping in the stolen ‘Flying Patrolman ‘Copter!” yells someone on the cover of Mr. District Attorney #60, published way, way back in 1957. Here’s our question: Why is the district attorney on the roof of the building apparently chasing a jewel thief? Isn’t he making himself a witness to a crime which would preclude him from prosecuting the thief?

It is Friday the 13th. Yikes. We thought about using the cover of one of the many Friday The 13th comic book adaptations in today’s post, but they were all too violent.

Okay, so, Macaulay Culkin released a pizza themed tribute to the Velvet Underground. Much confusion followed. Take a listen right here.

What happens when a brewery sues a moonshine maker for trademark infringement? See here. (Hat tip: Beer Pulse).

Thanks to the TortsProf blog for linking our recent interview with Professor William Janssen.

Rest in peace, T.R. Fehrenbach. If you’re into Texas history, you must go read his masterpiece, Lone Star: A History Of Texas And The Texans.

Hot Queso Jurisprudence in Pennsylvania

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Last week, his piece, “The Perils of Queso: Pennsylvania Federal Court Addresses Hot Cheese Claims,” was published by the American Bar Association Section of Litigation Products Liability Committee’s New & Developments site.

We’ve written about hot coffee, and we’ve even written about hot melted cheese on this site back in the day. But when this new hot queso case arrived, we knew we had to cover it.

Here’s the first three paragraphs of the article:

More than two decades after Stella Liebeck sued McDonald’s in the infamous hot coffee case, hot food and beverage cases continue to be litigated in state and federal courts. However, as recently noted by the U.S. District Court for the Eastern District of Pennsylvania, the difference between hot food and hot beverages may dictate varying results on summary judgment. See Freeman v. Ruby Tuesday, Inc., No. 12-2558, 2013 WL 4082235 (E.D. Pa. Aug. 12, 2013).

In that case, the plaintiff ordered a serving of hot beef queso dip, which the court described as “a hot appetizer which he knew was served hot.” The complaint—originally filed in state court before removal and available on PACER—described it as “an appetizer, which consisted of chips along with a dip . . . presented to plaintiff in a very hot and dangerous condition.” As he began to eat, the plaintiff allegedly burned his mouth and arm and sustained additional injuries when the purported trauma caused him to fall backwards. In the complaint, he claimed to suffer “serious and permanent orthopedic and neurological injuries.”

Judge Rufe was called upon to review the defendant restaurant’s motion to exclude the plaintiff’s purported food safety specialist and accompanying motion for summary judgment.

You knew we would have to reference the Liebeck case, right? For the full article, please see here.

Friday Links

You know, we usually feature law inspired comic book covers in our weekly edition of Friday Links, but today, we thought we’d showcase a legal themed beer label. What better name for a beer than voter fraud? Apparently, Asheville, North Carolina’s own Burial Beer Company teamed up with Oskar Blues Brewery – the Colorado brewery with a heavy presence in Western North Carolina – to create this new concoction. Unfortunately, we’ve yet to try it! For more on the Voter Fraud beer, see here and here.

Headline of the Week: “The Hells Angels Are Surprisingly Litigious.” Now those will be some eventful depositions, we suspect.

You can check out the December 2013 issue of the South Carolina Bar News here! On pages 18 and 19, you can see our own Stuart Mauney’s article on “Revisiting The Lawyers’ Epidemic: Why Lawyers Are Vulnerable To Depression, Suicide, And Substance Abuse.” (That article originally appeared right here at Abnormal Use back in October of this year.)

Samantha Gilman of The Charlotte Observer reports: “Workplace injuries and illnesses drop in North Carolina.”

Get this: A blog called iClass cited our prior post on a federal court using the word “selfie” in a judicial opinion. How about that?

Stop The Presses! New Laches Case In North Carolina!

Our longtime readers know that we here at Abnormal Use have a favorite affirmative defense: laches. In fact, we love laches, so much so that in March of this year we authored the post “Laches – The Saddest of All Affirmative Defenses.” In that fateful post, we observed:

Just as D minor is the saddest of all keys, laches is the most forlorn of affirmative defenses.  Nevertheless, it has always been our favorite, and our dream is to one day win summary judgment based solely on our invocation of laches. But even after all of these years, we are still waiting for such a victory. Why does laches get no respect in dispositive motions?  As an affirmative defense, it’s something slightly less than the statute of limitations defense, which bars claims based on the passage of a set number of years.  Laches, as we all know, means that a party should be prevented from recovery because he or she has sat on their rights for too long, even though that period of time that they waited, may still be within the statute of limitations.

Well, guess what? Earlier this week, our own North Carolina Court of Appeals released a significant laches opinions.  See John Wm. Brown Co., Inc. v. State Employees’ Credit Union, No. 11-CVS-16809 (N.C. Ct. App. Dec. 3, 2013).but of course, the proponents of laches did not prevail.  The court did not mince words:

On appeal, [Plaintiff] contends the trial court erred in granting [Defendant’s] motion to approve and enforce the Agreement because the doctrines of laches and equitable estoppel bar the enforcement of the Agreement over its objection. We disagree.

Oh, well. Here’s a very, very distilled version of the facts: Plaintiff , a general contractor, appealed the trial court’s order granting the defendant credit union’s motion to enforce a settlement agreement. As per custom and case law, the reviewing court analyzed the motion as if it were a motion for summary judgment. In invoking laches to oppose enforcement of the agreement, the plaintiff argued that an insurance company handling the bonds, with the credit union’s knowledge, “sat on its right of assignment under the Agreement of Indemnity for over a year while litigation commenced” and claimed “it was prejudiced as a result of [the insurance company’s delay because it spent substantial amounts of time and money pursuing the litigation.” After describing the doctrine of laches in some level of detail, the court concluded as follows:

We have been unable to find any case where the doctrine of laches has been applied in a scenario similar to the one now before this Court. Given the unique posture in which the doctrine of laches arises and the fact that [Defendant] was not the cause of the delay, we hold the doctrine of laches has no applicability in the present case and does not bar enforcement of the Agreement by [Defendant]. Nevertheless, assuming arguendo the doctrine of laches may be applied to preclude the exercise of a right of assignment by a third party in order to bar the enforcement of a settlement, the result in the present case would not be different. The language in the Agreement of Indemnity is clear, “[n]o failure or delay by [the insurance company] to exercise any right, power or remedy provided pursuant to this Agreement shall impair or be construed to be a waiver of [the insurance company’s] ability or entitlement to exercise any other right, power, or remedy.”

There you have it. Another defeat for laches. Alas.

Abnormal Interviews: Law Professor William M. Janssen

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to law professor William M. Janssen of the Charleston School of Law in Charleston, South Carolina. The interview is as follows:

1. What is the most significant new development in South Carolina products liability law in recent years? What about in the regulation of medical devices?

Products liability law continues, nationally, to be a discipline in great flux, and the list of “significant new developments” could be a really lengthy one.  To my eye, among the top candidates for this distinction are the following six:

A.  Branham v. Ford Motor Company (S.C. S.Ct. 2010): The decision to reformulate our products design defect theory from a consumer-expectations/risk-utility composite into a far more predictable RAD-based risk-utility model has added great clarity to this realm of local products theory.  Now, the pleading and proof expectations for this theory are fixed: a claimant must demonstrate the presence of a feasible alternative design (which, we’re now instructed, installs an inquiry that evaluates “cost, safety and functionality”), and then show how this alternative design “would have prevented the product from being unreasonably dangerous.”  This reformulated approach to testing for design defectiveness adds clarity and more guided decision-making to what is otherwise a nearly boundlessly subjective undertaking.

B.  State v. NV Sumatra Tobacco Trading Company (S.C. S.Ct. 2008): In this decision, our Supreme Court took sides in the great O’Connor/Brennan Asahi stream-of-commerce debate over the proper boundary-line set by the Due Process Clause in “stream”-based personal jurisdiction contests.  As “stream” theory will frequently (nearly always?) involve a products claim, settling this core inquiry over the reach of judicial power is critically useful.  By my reading, our Supreme Court took us even further than Justice Brennan had envisioned in Asahi.  Our Court reasoned that “simply placing a product into the stream of commerce is consistent with the Due Process Clause,” thereby satisfying the constitutional prescription placed on the exercise of personal jurisdiction over nonresidents.  (Sumatra Tobacco, Fn. 5)  [By comparison, Justice Brennan had qualified his view with the admonition that the Due Process Clause would be satisfied in “stream” cases “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State.”  If our Supreme Court’s unqualified “stream” approach is applied literally, it would not matter whether Sumatra Tobacco knew that its cigarettes were being marketed in South Carolina or not – arguably, a much broader approach to the Due Process Clause than Justice Brennan had advocated.]  With the Court again brutally fractured two terms ago in J. McIntyre Machinery v. Nicastro, the prospects for a decisive ruling from Washington that could supplant Sumatra Tobacco now seem dim.

C.  Twiqbal (U.S. S.Ct. 2007 & 2009): More below.

D.  Federal Preemption: The uncertainties in the evolving landscape of federal preemption theory are hard to overstate.  In Buckman (2001) and Geier (2000), the U.S. Supreme Court seemed poised to give federal preemption theory a broad and sweeping application that would compromise broad swaths of run-of-the-mill products claims in prescription-only cases.  The Court seemed to retrench meaningfully in Lohr (1996) and Wyeth v. Levine (2009), only to then press out again in Riegel (2008) and Bartlett (2013).  All told, the federal preemption story is a byzantine one of 5-4 decisions, blistering dissents, and shifting majorities.  For litigants in prescription drug and device product cases, federal preemption remains a fundamentally unstable area of constitutional law.

E.  Off-Label Prescription Drug/Device Promotion and the First Amendment: The federal government and its principal drug and device regulator, FDA, have insisted that aggressively policing the off-label promotion border is critically important in safeguarding the new-drug and new-device approval process deemed essential to a safe pharmaceutical and medical device marketplace.  The Supreme Court’s recent decision in Sorrell v. IMS Health (2011) and the Second Circuit’s long-awaited opinion in United States v. Caronia (2012) raise the specter that the Free Speech Clause may have an important role to play in the scope of regulation of off-label promotion.  Both decisions intimate that a manufacturer, promoting off-label in a manner that is indisputably truthful and non-misleading, may find a constitutional vanguard against both criminal and civil liability.  The consequences of such an outcome, caution FDA, could decimate the agency’s continued effectiveness in protecting our drug and device supply.  The final battle in this war is yet to come.

F.  S.C. Rule of Civil Procedure 30(j) (2000): In promulgating Rule 30(j), our Supreme Court noted that it was requiring “attorneys in South Carolina to operate under one of the most sweeping and comprehensive rules on deposition conduct in the nation.”  The Rule has lived up to the billing.  Products litigations are very discovery-laden enterprises, and the restrictions imposed on attorney behavior by Rule 30(j) certainly impact the reach and practice of deposition discovery in our State.  Because depositions are the most agile and unpredictable of all discovery tools, the substantial constraints on defensive lawyering imposed by Rule 30(j) qualifies, by any measure, as one of the “significant new developments” in our discipline.

2. How has the evolving Twiqbal jurisprudence affected the litigation of mass tort or mass pharmaceutical cases?

A growing body of data suggests that in employment discrimination, civil rights, and pro se cases, Twiqbal may be having a statistically significant impact in removing cases from the federal docket prior to the filing of an answer and the pursuit of discovery. Opinions vary on whether this pre-answer culling is something to be cursed or cheered.  A few years back, I conducted an industry-targeted study on the effect of Twiqbal on pharmaceutical and medical device litigation.  (71 La. L. Rev. 541).  My conclusions were mixed.  In studying 264 drug and device cases released over 15 months post-Iqbal, I found that nearly 80 percent of the time, Twiqbal had no perceivable decisional impact on whether a drug or device pleading survived or failed.  By 20 percent is still a large number, and in those cases, I could not conclude with any confidence that Twiqbal had played no role in the outcome.  That said, it remained unclear to me following this study whether it was the “plausibility” requirement of Twiqbal that was principally influential, or merely the “no-conclusions” requirement of Twiqbal.  If the latter (as I suspect, in many cases, it was), that portion of the Twiqbal approach added nothing, in truth, that was particularly new or different than the incumbent pleading-testing approaches of each of the Nation’s federal circuits.  Nonetheless, whether one perceives great change or modest change in Twiqbal, there is little question but that it has added a good deal of uncertainty to the pleadings stage of federal litigation, and is likely incentivizing great factual enhancement by federal pleaders.

3. What is the biggest challenge for lawyers practicing in the products liability field today? What advice would you give?

Our discipline is one marked by great change today.  Perhaps the biggest challenge for any products lawyer today is simply keeping up with the profound and continuing fluctuations in the substantive law we confront and the procedures through which we confront them.  Without question, the consequences of these changes can be dramatic and dispositive.  Twiqbal and federal preemption can be courthouse door-closers.  The new Branham approach to product design theory imposes enhanced burdens on plaintiffs and offers fresh vulnerabilities to defendants.  The thought that the Constitution’s free speech protections could impact products cases raise an entirely new and generally unexplored frontier.  This is an exciting time to be a products lawyer.  My advice?  Simplistic as it may sound, perhaps the product lawyer’s greatest challenge today is just keeping abreast of change.

4. Generally, how would you characterize the media coverage of products liability issues?

It’s a mixed bag, in my view.  Industry-specific media sources (like BNA specialty reporters or Law360) seem to do a laudable job of capturing nuances and practical meaning in major case law and legislative developments.  While I might take issue with a particular comment or critique in those sorts of sources, I find that, by and large, their work is fairly sophisticated (considering time and space constraints), and valuable to the practitioner.  The mass media is, predictably, a horse of a different color.  Their target audience is not the products lawyer or industry participant, but the daily news reader.  Sophistication, nuance, and reliable interpretation all suffer.  In that environment, “sound-bites” seem often to trump content.

BONUS QUESTION: Favorite pop culture lawyer?

It’s a retold answer for sure, but Vinny Gambini (My Cousin Vinny) is the hands-down pick for me.  If you pressed me for a more obscure choice, I’d go with Rudy Baylor in The Rainmaker.  I think Grisham wove an entertaining David-versus-Goliath tale, with a good number of “teachable” moments that I use with great effect in class.

BIOGRAPHY: William M. Janssen joined the Charleston School of Law faculty in 2006 after a lengthy practice with the mid-Atlantic law firm of Saul Ewing LLP, where he was a litigation partner, a member of the firm’s seven-person governing executive committee, and chair of the interdisciplinary Life Sciences Practice Group.  He concentrated his practice in pharmaceutical, medical device, and mass torts defense and risk containment.  In practice, he was involved in several high-profile drug and device cases, including the national diet drug (“fen-phen”) litigations, DES litigations, and myelographic contrast dye litigations.  He has spoken and written extensively on pharmaceutical and medical device law.